Workplace drug policies may restrict medical cannabis use in Illinois

Some chronically ill patients hoping to legally access medical marijuana in Illinois may be out of luck if their employers choose to maintain or create zero-tolerance drug policies.

The state’s new medical marijuana law, which was signed in August and took effect in January, protects patients from arrest or prosecution for using the drug, but it doesn’t protect them from being terminated if they test positive for the drug and their employers restrict its use.

Experts say it’s a good time for employers to revisit their drug policies and adjust them to address the state’s legalization of medical marijuana. It’s unclear how many patients may lose out on using the drug or risk losing their jobs if they do.

“If an employer already has a drug policy, there’s nothing in the act that prevents them from enforcing that drug policy,” said Nesheba Kittling, an attorney with Chicago-based Fisher & Phillips LLP who specializes in labor law. “If you have a zero-tolerance policy, the act allows you to enforce that regardless if someone is using marijuana.

“We’ll get people who have a smaller workforce who envision someone having cancer and using medical marijuana to help with the cancer. They wonder, ‘Do I really have to terminate them?’ At the end of the day, it’s up to you.”

‘Not sure what it means’

Kittling said case law in states such as California, Oregon and Washington — places with less restrictive medical marijuana laws than Illinois — have sided with employers when employees sue because of discipline involving medical marijuana.

Illinois’ law does protect employees from disciplinary action just for having or saying they have a medical marijuana card. Rules regarding how patients can access the drug and regulations of the 22 cultivation centers and 60 dispensaries that will be allowed to grow and sell it are still in the proposal stage, meaning patients likely won’t have access to the drug until later this year or early next year.

Kittling said employer drug policies run the gamut of what they allow and don’t allow. Companies with government contracts are more likely to have zero-tolerance policies because such policies are mandated by the federal government.

She said employees should research their respective work drug policies, which often include discipline up to and including termination if the violation involves drug use.

Still, confusion in the employer and human resources communities abounds. Kittling works with the Illinois Chamber of Commerce to do webinars and in-person education for businesses about hot-button issues such as medical marijuana and concealed carry, and the sessions have been in high demand.

She has another session scheduled for March 18.

“People have heard about it, but they’re not sure what it means,” Kittling said of the new law. “I tell them you still have the right to take action or to not allow it, and they’re more relieved.”

Law needs experience

Illinois’ law lists about 40 conditions — including cancer, HIV/AIDS, glaucoma, multiple sclerosis, rheumatoid arthritis and muscular dystrophy — that would qualify patients to get recommendations from their doctors to use medical marijuana.

Marijuana can stay in a person’s system for up to a month, which is why advocates say that employers should adjust drug policies’ medical usage of the drug, said Chris Lindsey, a legislative analyst with the Marijuana Policy Project, a marijuana policy-reform organization based in Washington, D.C.

“When state laws don’t recalibrate to accommodate patients consuming, we have a real serious problem,” Lindsey said. “Patients have options, but then they don’t have options.

“Not everybody has zero-tolerance policies. ... Employers need to decide what’s more important: do we want quality employees or is what you did three weeks ago enough to terminate you?”

Rep. Lou Lang, D-Skokie, sponsored the medical cannabis bill and said questions about whether employer restrictions will limit the number of patients who can use medical marijuana are fair. But he thinks the law’s language is very clear.

“Whatever rules employers have at their workplace can stay in place,” Lang said. “We were very specific that if you have a drug-free workplace, it can remain drug-free.”

Lang said adding language that would have regulated employer responsibilities with regard to medical marijuana would have stalled the bill’s passage. He also said the state’s language is similar to wording in other states’ medical marijuana laws.

“There may be adjustments that should be made along the way, but we won’t know until we get some experience with this, until the program is up and running and people who need the product are taking it,” Lang said.

Lang, who’s been a legislator for 26 years, said he has followed this new law’s rule-making process much more closely than other bills he has helped pass. He’s communicating with the three state agencies — the Department of Public Health, Department of Agriculture and Department of Financial & Professional Regulation — as proposed regulations take shape.

“I sent each of them personally typed emails with comments,” Lang said. “I must say, given the fact that (the agencies) have never had to deal with this before, I was very pleased with the first rollout of the draft rules. They did a wonderful job. Changes for sure need to be made, and they’ll make them.”

Wait-and-see approach

Several local employers plan to review or are reviewing their drug policies but haven’t made changes yet.

City and village officials are waiting to learn more about the state’s regulations of medical marijuana before rewriting their own personnel policies, which prohibit use of the drug.

The Rockford School District employs about 3,800 people doing jobs as varied as teaching and social work to driving school buses. Employees must pass an initial drug-screening test. After that, the district has what is called a drug- and alcohol-free workplace. That’s not exactly the same as a zero-tolerance drug policy, explained Angel Contreras, the district’s chief human resources officer.

Under the district’s current policy, all employees are prohibited from using, distributing, possessing and being under the influence of any controlled substance or alcohol while on district property or working.

Employees who violate the policy could be subject to disciplinary action up to termination.

“The (Rockford School Board) has the option to require an employee to successfully complete an appropriate drug or alcohol abuse rehabilitation program,” Contreras wrote in an email.

Any changes to the district’s drug policy would come from a collective administrative recommendation to the board, likely with human resources and legal counsel taking the lead, Contreras said.

“You show up for work and you’re under the influence of whatever, you can still be held accountable by an employer to be terminated based on our policies,” he said. “Even in Colorado, it’s approved for recreational (use), the employer still can say, ‘Not when you’re working for us.’”

Rockford Health System and Crusader Community Health both said the medical marijuana issue is on their radars. A spokesman for Chrysler Group LLC said the company is monitoring its policies and processes “to ensure legal compliance in all states and municipalities where it does business.”

No policy decisions have been made yet at OSF Saint Anthony Medical Center, but officials are researching the medical marijuana law, spokeswoman Therese Michels said in an email. Michels also emphasized that employees can’t be impaired while at work, and if they appear to be impaired, they are evaluated for their “fitness for duty” by either occupational health or emergency department staff.

“If found unfit for duty, then our positive discipline process is started,” Michels said. “An example is that alcohol, like medical marijuana, is legal, but we do not allow employees to work while under the influence of alcohol, nor will we regarding medical marijuana.”

Jerry Guinane, vice president of human resources for SwedishAmerican Health System, said the health system has a drug-free workplace, and employees have to pass a drug screening as part of the pre-employment process. If an employee is found to be impaired at work or involved in an accident, drug testing is also implemented.

He doesn’t see a need at this point to change policies.

“If you’re a patient in our facility or in any hospital, you want people who are treating you not to be impaired,” Guinane said.

Winnebago County Human Resources Director Kim Ponder said medical marijuana will be addressed the county’s personnel policy on prescription medications. The specifics surrounding that particular policy have not been released the public yet because it’s still in the draft stage.

The current policy addresses the consequences for illegal substances but does not touch on abusing prescribed medicines.

“That would be an evolution in the policy of how we address drugs and alcohol,” Ponder said.

The Winnebago County Sheriff’s Department hasn’t had any formal discussions about medical marijuana. Officers are prohibited from working if they use any substance — legal or illegal — that affects their ability to do their jobs, Chief Deputy Kurt Ditzler said.

Officers who show up for work and are not fit for duty will be sent home, with or without discipline depending on the specifics surrounding the incident, Ditzler said.

If someone has a medical condition that prohibits him or her from working, the person must get a physician’s OK to return to work. The department often will provide doctors a job description so they understand patients’ job responsibilities.

“Under the Family Medical Leave Act, we provide the (doctor or other medical professional) with a job description so they clearly know if a person had a back injury and they can’t do any lifting, they can’t work as a police officer,” Ditzler said.